The Billing Scandal

This is a billing scandal, not an ordinary costs dispute.  The materials before the Court established that the British Columbia special costs award was built on overlapping allocations of lawyer time at egregious time blocks that bore no rational relationship to the underlying recorded court activity.  The MacKinnon affidavits claim its line items as “reasonably required”, while the BCSC Clerk’s Notes show the actual court appearances to terse administrative entries with modest hearing durations and prep.  That juxtaposition is not peripheral; it is the scandal.  Under Bradshaw Construction Ltd. v. Bank of Nova Scotia (1991), 54 B.C.L.R. (2d) 309 (S.C.) at para. 44, special costs are fees that a reasonable client would pay a reasonably competent solicitor for the work described.  On this record, that standard was not met.  The award reflected a monetized superstructure erected on a sparse procedural skeleton, and the enforcement court was asked to give it effect in Nova Scotia without confronting what the record plainly showed.
 

That is exactly the kind of circumstance in which an enforcing court must refuse to behave like an administrative rubber stamp.  Beals v. Saldanha, [2003] 3 S.C.R. 416, 2003 SCC 72, makes the governing principle clear.  At para. 218, the Court explained that the nominate defences are best understood as examples of a broader principle governing recognition and enforcement: the party seeking enforcement must come to the Canadian court with clean hands, and the court should not lend its authority to a judgment whose enforcement would amount to an abuse of process or bring the administration of justice in Canada into disrepute.  At para. 220, the Court recognized that enforcement doctrine is not indifferent to outcomes that are grossly excessive, questionable, or obtained through conduct that fails any serious judicial “sniff test”.  At para. 265, the Court held that enforcement may properly be refused where doing so would “shock the conscience of Canadians”, especially where the record reveals a lack of transparency, an uneven playing field, and the extraction of a windfall through aggressive exploitation of another party’s vulnerable position.  Although Beals dealt with a foreign judgment, the principle applies with equal force here to interprovincial jurisdiction and the Enforcement of Canadian Judgments and Decrees Act (the "ECJDA").  
 

The discretion under s. 8 of the ECJDA therefore had to be exercised judicially, not mechanically.  Colburne v. Frank, 1995 NSCA 110 at para. 9, states the classic grounds for appellate intervention in discretionary matters: error in principle, insufficient weight to relevant circumstances, failure to have all material facts before the judge, or misapprehension of those facts.  The authorities cited in Colburne—Charles Osenton and Company v. Johnston (1941), 57 T.L.R. 515; Finlay v. Minister of Finance of Canada et al. (1990), 1990 CanLII 12961 (FCA), 71 D.L.R. (4th) 422; and Attorney General of Canada v. Foundation Company of Canada Limited et al. (S.C.A. No. 02272, unreported)—all reinforce the same point: discretion is reviewable when it is exercised without due regard to the material facts and consequences.  Here, the consequences were catastrophic, and the record demonstrating the billing scandal was before the Court.  A stay refusal that ignores the scandal and permits immediate execution cannot be characterized as a proper exercise of judicial discretion.
 

Nor was this merely a technical shortcoming.  The jurisprudence on abuse of process and the appearance of injustice squarely applies.  R. v. Tayo Tompouba, 2024 SCC 16 at para. 72, recognizes that some defects are so severe that they render proceedings unfair or create the appearance of unfairness, drawing from Khan at para. 69, Fanjoy at pp. 238-40, Davey at paras. 50-51, and Kahsai at paras. 67-69.  R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309 at paras. 76-78, holds that a stay may be justified where the state’s conduct contravenes fundamental notions of justice and undermines the integrity of the judicial process, citing R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411 at para. 73, Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391 at para. 91, and R. v. Conway, 1989 CanLII 66 (SCC), [1989] 1 S.C.R. 1659 at p. 1667.  Those authorities do not tolerate a court process that validates egregious unfairness through continued participation.  Enforcing a six-figure billing scandal while refusing to engage the evidentiary record that exposes it is exactly the kind of state-sanctioned conduct that degrades confidence in the administration of justice.
 

Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391 sharpens the point.  At paras. 91 and 110, the Court explains that a stay is a prospective remedy meant to prevent the continuation of a wrong and that, in exceptional cases, the very act of proceeding in the face of egregious prior misconduct is itself offensive to society’s sense of justice.  The Court further recognized that where the process carries an ongoing affront to judicial independence or to the appearance that justice will be done, the public interest in preserving institutional legitimacy can outweigh any competing interest in proceeding.  That principle applies here with direct force.  The wrong was not historical only.  It continued into Nova Scotia through the enforcement motion itself.  The billing scandal was carried forward, validated, and weaponized in an out-of-province court under cover of formal enforcement procedure.
 

The same failure appears under modern reasonableness doctrine.  Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 135, emphasizes the heightened responsibility of decision-makers who wield extraordinary power over ordinary people to demonstrate that the consequences of their decisions are justified in light of the facts and law. Magee (Re) (Ont. C.A., 2020) at para. 19 states that a reasonable decision must reflect an internally coherent and rational chain of analysis and must be justified in relation to the governing legal framework and evidentiary matrix, especially where the stakes are severe.  A decision that says, in effect, “I am not here to review those costs,” while enforcing them in the face of a record exposing their scandalous basis, is not a rational chain of analysis.  It is a refusal to analyze the constellation of issues at bear on the matter and constrain the adjudicator.  The central legal and factual constraints were not weighed; they were bypassed.
 

That is also constitutionally defective adjudication.  Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350, 2007 SCC 9 at para. 48, holds that to comply with s. 7 of the Charter, a judge must make a decision based on the facts and the law and must provide a meaningful judicial assessment of the case on that basis.  On this record, the applicant was prevented from quoting from the MacKinnon affidavits because the underlying material was under seal, was cut off when he sought to rely on the jurisprudence concerning special costs and duplication, and then received a lengthy adverse ruling immediately after submissions that did not grapple with the billing scandal, the disproportionality, or the governing authorities.  That was not meaningful adjudication.  It was the enforcement of a massive award without engagement with the facts and law that determined whether enforcement was just.
 

The record also discloses partiality, not merely an abstract apprehension of it. R. v. S. (R.D.), [1997] 3 S.C.R. 484 at para. 106, drawing on R. v. Bertram, [1989] O.J. No. 2123 (H.C.), R. v. Stark, [1994] O.J. No. 406 (Gen. Div.), and Gushman, defines bias as a predisposition that sways judgment and prevents impartial adjudication. At para. 107, relying on R. v. Parks (1993), 15 O.R. (3d) 324 (C.A.), the Court explains that partiality is demonstrated where those predispositions affect the actual decision rather than remaining mere background attitudes. And at para. 111, citing Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 at p. 394, the Court states the objective test: what would an informed person, viewing the matter realistically and practically and having thought it through, conclude? On this transcript and this outcome, the answer is plain.  The Court refused to confront extreme probative data, refused the relevant authorities, and adopted the respondent’s framing that the award arose from “vexatious conduct” in British Columbia.  The predisposition is not inferred from atmosphere; it is evidenced by the treatment of the record and the decision itself.
 

Once partiality infects the proceeding, the law is clear about the consequence.  R. v. Curragh Inc., [1997] 1 S.C.R. 537 at paras. 92 and 6, drawing on Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), 1992 CanLII 84 (SCC), [1992] 1 S.C.R. 623, holds that the law protects both the fairness of the hearing and the reputation of the administration of justice, and that where procedural fairness is denied through bias, the damage cannot be cured by the subsequent decision.  The hearing and the resulting order are void.  That principle matters here because the order was not simply wrong on the merits.  It was produced through a process that refused the applicant access to the very facts and law that would have exposed the scandal and prevented its enforcement.
 

The recourse later sought through regulators and oversight bodies only intensifies the point.  A Lawyer v. The Law Society of British Columbia, 2021 BCSC 914 at para. 63, citing Wise v. LSUC, 2010 ONSC 1937 at para. 17 and Gore at para. 29, confirms that a regulator’s investigative mandate should not be interpreted narrowly where doing so would prevent it from using the best means to uncover the truth and protect the public.  Canada (Attorney General) v. Power, 2024 SCC 26 at para. 26, reaffirming Hunter v. Southam Inc., [1984] 2 S.C.R. 145 at p. 156, and Reference re Senate Reform, 2014 SCC 32 at para. 25, insists that public-law and Charter guarantees must be interpreted broadly and purposively, not narrowly or technically. Smith v. Jones, [1999] 1 S.C.R. 455 at para. 55, drawing on Descôteaux v. Mierzwinski, likewise confirms that privilege does not attach to communications that are criminal in themselves or made to facilitate crime. These authorities all repel the same instinct: institutional compartmentalization cannot be used to avoid confronting serious wrongdoing.  Yet that is exactly what occurred when the billing scandal was treated as someone else’s problem, somewhere else, at some later time, while execution moved forward.  By way of irony, Majawa J., the same judge that wrote A Lawyer v. The Law Society of BC, is the judge that ignored the shareholder scandal (here), sealed the entire file permanently (here), declared the victim vexatious for using the wrong procedural instrument as a self-represented litigant (foreclosing BC court access), and ordered special costs that turned into a half-million-dollar felony.
 

Even Perka v. The Queen, [1984] 2 S.C.R. 232 at pp. 270, 273, and 279, assists by analogy. Perka explains that the law recognizes situations of normative involuntariness in which no rational person could be expected simply to submit to the threatened harm. The subject’s point is not that Perka directly governed the stay motion, but that where the justice system is being used to strip a person of everything through a scandalous costs construct, passive compliance is not a morally neutral baseline.  The law does not require a citizen to treat institutionalized injustice as legitimate simply because it has been dressed in formal orders.
 

In sum, this was not a routine enforcement case, not an unfortunate irregularity, and not a borderline issue calling only for cautionary language.  It represents the interprovincial enforcement of a profound billing scandal—one where correction and appellate recourse were denied, the record remained sealed, and a false narrative was constructed to obscure the facts.  The MacKinnon affidavits, the BCSC Clerk’s Notes, the transcript, and the resulting reasons all point in one direction: the Court enforced an egregiously disproportionate costs award while refusing to engage the record and authorities that demonstrated why enforcement was unjust. On any faithful application of Bradshaw, Beals, Colburne, Tayo Tompouba, Babos, Tobiass, Vavilov, Magee, Charkaoui, S. (R.D.), Curragh, A Lawyer v. LSBC, Power, Smith v. Jones, and Perka, the Court should not have set its seal upon that execution order at all.